Who would Trump blame if Gorsuch or Kavanaugh ruled against his use of emergency powers for a border wall? – Washington Examiner
In an earlier post, I examined the significant risks for conservatives if President Trump invokes emergency powers to build a border wall. But it’s also worth taking a moment to examine why the move may not be such a no-brainer for Trump, either.
At first blush, it seems like invoking emergency powers would be a win-win for Trump when viewing things through the prism of his unorthodox political style. Right now, he’s boxed in a corner. The government has been partially shut down for three weeks, and there’s no conceivable way that the Democratic House is going to cave and agree to fund his border wall. Giving in to Speaker Nancy Pelosi, D-Calif., and abandoning the central promise of his 2016 campaign would be a colossal embarrassment. So the declaration of emergency powers has an obvious appeal. He can declare the state of emergency, agree to reopen the government, and fight it out in court. He will have demonstrated to his base that he’s willing to do anything in his power to deliver. Either he’d win in court and start constructing a wall or he’d lose and get to blame judges.
But here’s where it gets interesting. The border wall emergency powers declaration will ultimately get decided by the Supreme Court. What if one or both of his appointees rule against him?
This is not a particularly wild scenario. While Justice Brett Kavanaugh’s writings on executive power got attention during his confirmation hearings, he hasn’t been on the court long enough to get a sense of how he’ll rule on such issues. Gorsuch, however, at both the appellate level and so far at Supreme Court, has taken a relatively narrow view of administrative power — as he did when he sided with the court’s liberal wing against the administration in an immigration case.
An adverse ruling joined by Gorsuch (and perhaps Kavanaugh), a totally plausible scenario, would blunt any Trump “blame the courts” strategy to explain his failure to deliver on the border wall.
It’s easy to blame judges appointed by former President Barack Obama for losses in court. But how does Trump attack his own prized appointees?
He could, of course, but doing so would undermine the greatest argument he can make to Trump-skeptical conservatives: that he appointed great judges.
If a high-profile decision comes down during the 2020 campaign, how would he on one hand run on his judicial appointment record and, on the other hand, attack the crown jewels of that record as weak?
I suppose he could argue that Gorsuch and/or Kavanaugh were recommended to him by Federalist Society types and turned out to be frauds. But that would only make it seem like he was easily snookered, which is contrary to his image as a street-smart businessman who can spot a scam from a mile away.
The bottom line is that the emergency powers option shouldn’t be viewed as an obvious no-lose exit strategy for Trump.
[Related: Lindsey Graham: It’s time for Trump to use emergency powers to build border wall]
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